discretionary function exception in Mississippi

2018“Furthermore, even ‘assuming the challenged conduct involves an element of judgment,’” that judgment must be “of the kind that the discretionary function exception was designed to shield”—i.e., it must involve “considerations of public policy.” Id. at 322-23, 111 S. Ct. at 1273-74 . 6 Horn Lake, 152 So. 3d 1106, 1112-13 (Miss. 2014).

2016Jones adopted a workable test upon which the bench and bar could analyze a discretionary-function exception to the waiver of sovereign immunity as provided by Section 11-46-9(1)(d). 9 Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014). 10 Many of these cases are filed by general-practice attorneys who lack familiarity with administrative and regulatory law. 18 The discretionary-function exceptions of the Federal Tort Claims Act and the Mississippi Tort Claims Act are practically identical.11 For determining the application of discretionary-function immunity, the United States Supreme

2012Furthermore, "[a]pplication of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decisionmakers." Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 328 (¶ 16) (Miss.

2012Furthermore, “[ajpplication of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decision-makers.” Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 328 (¶ 16) (Miss.Ct.App.2006) (citing Elder v. U.S., 312 F.3d 1172, 1182 (10th Cir.2002)).

2007The first prong requires a determination of "whether the activity involved `an element of choice or judgment.'" Id. (quoting Gollehon Farming v. United States, 17 F.Supp.2d 1145, 1154 (D.Mont.1998)).

2007To determine whether an act is a "discretionary function or duty" under this test, "it must first be determined whether the activity involved `an element of choice or judgment.'" Id. (quoting Gollehon Farming v. United States, 17 F.Supp.2d 1145, 1154 (D.Mont.1998)).

2006We find that the duties East Mississippi owed to its patients were not discretionary and that the discretionary function immunity provisions of the Mississippi Tort Claims Act do not shield East Mississippi from liability. . . . 936 So.2d at 925 (emphasis added).

2005We find that the duties East Mississippi owed to its patients were not discretionary and that the discretionary function immunity provisions of the Mississippi Tort Claims Act do not shield East Mississippi from liability ... . 936 So. 2d at 925 (emphasis added). 12 “public policy function test” announced by the United States Supreme Court in United States v. Gaubert, 499 U.S. at 322 .

1999In Mosby v. Moore, 716 So.2d 551, 557 (Miss.1998) ( quoting Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992)), the Court described the discretionary and ministerial distinction as follows: While there is no flexible rule to distinguish whether an act is ministerial or discretionary, the most important criteria is if the duty is one which has been positively designated, the duty to perform under the condition specified, not being dependent upon the officer's judgment or discretion, the act or discharge thereof is ministerial.

1997In Mosby v. Moore, 716 So. 2d 551, 557 (Miss. 1998) (quoting Barrett v. Miller, 599 So. 2d 559, 567 (Miss. 1992), the Court described the discretionary and ministerial distinction as follows: While there is no flexible rule to distinguish whether an act is ministerial or discretionary, the most important criteria is if the duty is one which has been positively designated, the duty to perform under the condition specified, not being dependent upon the officer's judgment or discretion, the act or discharge thereof is ministerial.

1999In Mosby v. Moore, 716 So.2d 551, 557 (Miss.1998) ( quoting Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992)), the Court described the discretionary and ministerial distinction as follows: While there is no flexible rule to distinguish whether an act is ministerial or discretionary, the most important criteria is if the duty is one which has been positively designated, the duty to perform under the condition specified, not being dependent upon the officer's judgment or discretion, the act or discharge thereof is ministerial.

1997In Mosby v. Moore, 716 So. 2d 551, 557 (Miss. 1998) (quoting Barrett v. Miller, 599 So. 2d 559, 567 (Miss. 1992), the Court described the discretionary and ministerial distinction as follows: While there is no flexible rule to distinguish whether an act is ministerial or discretionary, the most important criteria is if the duty is one which has been positively designated, the duty to perform under the condition specified, not being dependent upon the officer's judgment or discretion, the act or discharge thereof is ministerial.

2022“Because discretionary-function immunity ‘protects only governmental actions and decisions based on considerations of public policy,’ when ‘applying the discretionary-function exception, this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.’” Id. at 188 (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 75 (Miss. 2012) (Waller, C.J., dissenting), overruled by Wilcher, 243 So. 3d at 188 ).

2005See Jones, 744 So. 2d at 260 .

2022In concluding that it did, the Court of Appeals relied upon Magee and determined that “regulating the establishment and operation of athletic programs and other school activities, such as physical-education classes, constitutes an exercise of political policy, thus satisfying the second prong of the discretionary-function analysis.” Clein, 78 So. 3d at 389 . 14 ¶33.

2021Id. at 389 (¶17). ¶14.

2022“Because discretionary-function immunity ‘protects only governmental actions and decisions based on considerations of public policy,’ when ‘applying the discretionary-function exception, this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens.’” Id. at 188 (quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 75 (Miss. 2012) (Waller, C.J., dissenting), overruled by Wilcher, 243 So. 3d at 188 ).

2018Because discretionary-function immunity "protects only governmental actions and decisions based on considerations of public policy," when "applying the discretionary-function exception, this Court must distinguish between real policy decisions implicating governmental functions and simple acts of negligence which injure innocent citizens." Id. at 76 (Waller, C.J., dissenting) (citations omitted) (emphasis added).

2012Ct.App.2006) (citing Elder v. U.S., 312 F.3d 1172, 1182 (10th Cir.2002)).

2012Furthermore, “[ajpplication of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decision-makers.” Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 328 (¶ 16) (Miss.Ct.App.2006) (citing Elder v. U.S., 312 F.3d 1172, 1182 (10th Cir.2002)).

2025See McElroy, 82 So. 3d at 624 (¶12).

2020The Mississippi Tort Claims Act was first enacted in 1984 in response to the Mississippi Supreme Court’s 1982 opinion in Pruett v. City of Rosedale, in which the Court abolished “the judicially created concept of sovereign immunity.” Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982), superseded by statute as stated in Jackson v. Daley, 739 So. 2d 1031, 1040 (¶ 32) (Miss. 1999).

2019Id. at 880 (¶51).

2019See Maness v. K & A Enters. of Miss., LLC, 250 So. 3d 402, 409 (Miss. 2018) (“The movant bears the burden of persuasion, ‘persuading the trial judge that: (1) no genuine 8 We note that the circuit court ruled on the summary-judgment motion under the discretionary-function test espoused in Brantley.

2014In this regard, the instant case is analogous to Fang v. United States, 140 F.3d 1238, 1241-42 (9th Cir. 1998), where the Ninth Circuit Court of Appeals held that the discretionary-function exception of the FTCA did not apply to a claim based on the negligent provision of medical treatment by employees of the National Park Service.

2014In this regard, the instant case is analogous to Fang v. United States, 140 F.3d 1238, 1241-42 (9th Cir.1998), where the Ninth Circuit Court of Appeals held that the discretionary-function exception of the FTCA did not apply to a claim based on the negligent provision of medical treatment by employees of the National Park Service.

2012Dist., 9 So.3d 1187, 1191 (¶ 12) (Miss.Ct.App.2009) (analysis of the public-policy prong of the discretionary-function test).

2007However, in Duke v. Department of Agriculture, 131 F.3d 1407 , 1411 (10th Cir. 1997), the Tenth Circuit rejected the idea that a choice involving any hint of policy concerns would be within discretionary function immunity because that approach would "eviscerate" the social, economic, or political policy prong of the test and would allow the discretionary function immunity exception to "swallow the FTCA's sweeping waiver of sovereign immunity." Duke reiterated Gaubert's holding that the task before the court was to discern if the decision or nondecision implicated the exercise of a policy judgm

2007Id. at 1411. ¶ 40.

2007These cases cited by the Willings held that, while the duties at issue were discretionary within the meaning of the MTCA, the governmental actors nonetheless had a duty to exercise ordinary care in carrying out these duties. [6] *1252 The Mississippi Supreme Court has since held that the discretionary function immunity abrogates the duty to exercise ordinary care when performing or failing to perform a discretionary function, "whether or not that discretion be abused." Collins, 876 So.2d at 289 (¶ 17).

2006L.W., 754 So.2d at 1142 (¶ 27).

2006See Tillman v. Tillman , 791 So.2d 285 , 289 (¶ 13) (Miss.Ct.App. 2001) ("It is a standard practice of the appellate courts of this state, in the name of judicial *Page 134 economy, to affirm the decisions of the lower court when we conclude that the right result has been reached, even if for the wrong reason."). ¶ 8.